Did Hudson Err? You Be the Judge

-Submitted by David Drumm (Nal), Guest Blogger

Orin S. Kerr
Kurt T. Lash

That would be Judge Henry Hudson who recently struck down the Minimum Essential Coverage Provision of the Affordable Care Act that requiring all citizens obtain health care coverage, here. In one corner we have Orin S. Kerr, professor of law at The George Washington University Law School. In the other corner we have Kurt T. Lash professor of law at The University of Illinois College of Law.

It is Necessary and Proper that you read on.

Referential information:

Judge Hudson’s opinion (non-searchable pdf).

The Commerce Clause:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

The Necessary and Proper Clause:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

McCulloch v. Maryland.

Justice Marshall, in McCulloch v. Maryland, saw the Necessary and Proper Clause as requiring a right fit between means and ends, and established the doctrine of implied powers:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.


Orin Kerr’s critique:

According to Professor Kerr the critical line is from page 19 of Judge Hudson’s opinion:

If a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

Professor Kerr’s reading of the critical line is that Judge Hudson assume that the Necessary and Proper Clause does not extend Congress’s power beyond Commerce Clause. The whole point of the Necessary and Proper Clause is it provides Congress with power beyond the powers enumerated in Article I, which includes the Commerce Clause.

As Professor Kerr says, “If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity.”

Kurt Lash’s rebuttal:

Kurt Lash argues context in his assertion that Judge Hudson did not dismiss the concept of implied Congressional power.

According to Professor Lash the critical portion is from page 24:

Because an individual’s personal decision to purchase–or decline to purchase–health insurance from a private provider is beyond the historical reach of the Commerce Clause, the Necessary and Proper Clause does not provide a safe sanctuary. This clause grants Congress broad authority to pass laws in furtherance of its constitutionally-enumerated powers. This authority may only be constitutionally deployed when tethered to a lawful exercise of an enumerated power. As Chief Justice Marshall noted in McCulloch, it must be within ‘the letter and spirit of the constitution.’ The Minimum Essential Coverage Provision is neither within the letter nor the spirit of the Constitution. Therefore, the Necessary and Proper Clause may not be employed to implement this affirmative duty to engage in private commerce.

Professor Lash contends that Judge Hudson clearly embraces the standard understanding of the Necessary and Proper Clause when Judge Hudson wrote: “[a]lthough the Necessary and Proper Clause vests Congress with broad authority to exercise means, which are not themselves an enumerated power, to implement legislation, it is not without limitation.”

This is the key idea behind Hudson’s ruling, that upholding the mandate for individual insurance would require an interpretation of federal power that removes any limitation on that power. Such power would fall outside John Marshall’s declaration in McCulloch that all claims of federal power must fall “within the letter and spirit of the Constitution.”

29 thoughts on “Did Hudson Err? You Be the Judge”

  1. Unfortunately, it should have been a tax. “The federal government pays directly and indirectly for health care for the uninsured, therefor we will all be assessed a tax to cover part of that expense… UNLESS you get a qualifying insurance policy, so that you are not a burden, then, you will be exempted from the tax.” Alas, that is not what was passed, and so we find ourselves in this mess.

    But, it’s tough to argue that health care and health insurance isn’t related to interstate commerce. The health of every citizen/consumer is a critical component to the economy of the US – it clearly underpins all other facets of economic activity.

    Reading the article above, I came away thinking that this was a completely nebulous situation – entirely open to individual interpretation. But then I read James M’s description of Filburn. The healthcare industry is a huge interstate (and international) business sector. Look at the giant pharmaceutical and medical equipment companies, and the multi-state hospital and clinic companies. Health insurance, while regulated state-by-state, which causes many insurance companies to exist as state-by-state segments, is clearly a national (interstate) business. If the federal government can regulate wheat production, even for personal consumption, isn’t it reasonable that it could regulate how people pay for health care, which is one sixth of the total, national economy?

  2. rcambell

    You have mis-characterized the law: no one will be taking a tax deduction because she has insurance. Some people will, however, be paying a penalty for not buying insurance. Congress could have structured the law as you characterize it, but Congress did not. That was the point of Judge Posner’s analysis. (Of course I could be wrong: if so let me know where in the law or the tax code, there is authority for me to take a tax deduction because I have health insurance, and I will concede that I am wrong.)

    For me, it will be interesting to see how in their statutory-construction analysis the Court deals with President Obama’s assurances that this was not a tax. I assume that some members of Congress made similar assurances.

  3. The problem(s) with rcambell’s arguments include: no one is required to buy a car, and, as I believe it was Judge Posner who wrote, the tax can be levied on all of us rather than on only those who don’t buy insurance (i.e., the tax is not necessary to the effectuate the law).

    As to Filburn – same thing in that no one is required to grow wheat. What would common sense tell you about a law that purported to require you to grow wheat or to buy a car?

  4. Are not auto manufacturers required by federal law to install seat belts (insurance companies required to offer plans for every citizen?) and thus we are required to purchase cars that have them (required to carry health insurance?)? Extending that, several local juristictions require that seat belts be worn under penalty of fine.

    Also, the government is well within its authority to levy a tax on just about anything they choose. This is a duly authorized tax which allows a 100% deduction by having insurance.

  5. James M.,

    I keep coming back to your parenthetical closing line: The problem with the analogy would likely be that health care is much less of an interstate commodity than wheat.

    Truly, health care is not in the same class as a fungible commodity. It is mostly service – and expert service at that – that the individual is largely unable to provide themselves let alone send to market. The same can be said of the drugs and medical supplies that may or may not be incidental to receiving those service. It simply doesn’t affect intrastate or interstate commerce in the same way as traditional commodities. However, I find the idea of forcing citizens to pay for one of five private for profit insurers plan or face penalty as a repugnant taking and a violation of equal protection. It’s just more corporate welfare.

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